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IT ALL BEGAN IN HAWAI'I

DAVID L. CALLIES, FAICP*

The first substantive chapter in THE QUIET REVOLUTION INLAND USE CONTROL was all about Hawai'i, where "it all began."'Indeed, Hawai'i still has the most centralized state land usecontrols in the United States. In fact, no state has adopted itssweeping state-wide zoning, which takes precedence over all localgovernment land use controls in all but four percent of the state'sland area. What distinguishes Hawai'i from other states, and whatmake these land controls possible, is that Hawai'i has only fourlocal governments, its four counties, and that there is a history ofcentral control, in part as a result of the state's monarchicalantecedents (until 1898, Hawai'i was more or less a kingdom ruledby a Queen and her council).

I. THE HISTORICAL AND INSTITUTIONAL CONTEXT

The preoccupation with land management in Hawai'i goeswell back in history, arguably dating from the semi feudalrelationship between certain Hawai'ian monarchs with their chiefnobles (ali'i), to whom they parceled out land in ahupua'a. Theland usually extended from the uplands to the sea.2 Thus, theroots of the statewide regulatory system are historical, which doesmuch to explain the relatively easy acceptance of a strongregulatory regime without significant legal challenge tomanagement and disposal policies that existed before a modernsystem of public land policy evolved. Indeed, this public land policybegan to emerge shortly after what has been described as thechaotic conditions following the virtual destruction of ancientHawai'i's social and economic patterns in the middle of thenineteenth century.3 The result was a climate that heavily favored

* J.D. University of Michigan, L.L.M. (planning law) NottinghamUniversity. This Article is excerpted, revised, and modified from DAVID L.CALLIES, REGULATING PARADISE: LAND USE CONTROLS IN HAWAII (Univ. ofHawai'i Press 2010).

1. FRED BOSSELMAN & DAVID CALLIES, THE QUIET REVOLUTION IN LANDUSE CONTROL 5 (President's Council on Environmental Quality, 1971).

2. JON CHINEN, THE GREAT MAHELE: HAWAII's LAND DIVISION OF 1848 3-6 (Univ. of Hawai'i Press 1958).

3. LEGISLATIVE REFERENCE BUREAU, PUBLIC LAND POLICY IN HAWAII: ANHISTORICAL ANALYSIS (1969), available at http://lrbhawaii.info/lrbrpts

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centralized land use management and control at the public sectorlevel, which is just what occurred in the middle decade of thetwentieth century.

In the years preceding 1961, when the State of Hawai'i passedits Land Use Law, the interests of the private landholdingoligarchy and the centralized state government converged out ofconcern for the threat to agricultural land, the mainstay of themajor private interests and the single most important factor in theHawai'ian economy.4 Hawai'i's economic "boom" was beginning,along with land speculation and development. Presumably, thestate's four counties were unequal to the task of dealing with theproblems generated by this rapid economic growth, havingcomparatively little planning expertise and few land use controls.5

The stage was thus set for the passage of Hawai'i's landmark LandUse Law, which resulted in the "zoning of Hawai'i" by a stateagency in order to contain sprawl and preserve agricultural land.It is this law and its progeny upon which most commentators havechosen to dwell. This is but a tip of the iceberg, however. Hawai'inow labors under a plethora of local and state regulations thataffect the use of land, public and private. Both traditional andunique zoning and subdivision schemes, requiring multiplepermits and conditions, all tied to tiers of local plans, vie forprominence with a host of regulations and standards issuedpursuant to federal statutes that, directly or indirectly, furtherrestrict the use of land. Hawai'i's statewide Land Use Law and thestate plans that guide its implementation set the basic land usepatterns for both private and public land in Hawai'i. They alsoprovide the context for county land use regulations. Additionally,all four counties have local land use powers and vigorouslyexercise them not only through traditional zoning districts but alsothrough a host of special and mixed uses and districts, some ofwhich "overlay" traditional districts for historic, conservation, oraesthetic purposes. How these affect traditional privatedevelopment "rights" is an increasingly important issue. So is thechallenge of proliferating county plans into traditional local landcontrol ordinances.

II. STATE LAND USE CONTROL IN HAwAI'I

Hawai'i is unique among the fifty states in its comprehensivestate-wide land use controls. Hawai'i's land use commission("LUC"), manages a system of land district classification, distinct

/publandpolicy/publandpolhist.pdf.4. BOSSELMAN & CALLIES, supra note 1.5. PHYLLIS MYERS, ZONING HAwAII: AN ANALYSIS OF THE PASSAGE AND

IMPLEMENTATION OF HAWAII'S LAND CLASSIFICATION LAW 19-20 (1976).

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from, but overlaying county zoning schemes.6 Actions by stateagencies, which are required for the approval of the multitude ofpermits required for virtually any large land use project, must,theoretically, meet the requirements of the statutory statecomprehensive plan.

A. Hawai'i's Land Districts

Land in Hawai'i is divided into four use districts: urban,rural, agricultural, and conservation.7 The LUC is responsible forgrouping contiguous parcels of land into these districts accordingto the present and foreseeable use and character of the land.8 Theurban district includes lands that are in urban use and will be forthe foreseeable future.9 The rural district is designed for land withsmall farms and low-density residential lots.10 The agriculturaldistrict consists of land theoretically used for farming andranching," and after recent amendments, includes a new,statutorily-defined sub-district, "Important Agricultural Lands"("IAL").1 2 The LUC, Hawai'i's four counties, and privatelandowners are currently identifying and classifying IALs.13Finally, the conservation district includes land in areas formerlyclassified as forest and water reserve zones, open spaces, watersources, wilderness, scenic, and historic areas. 14 Land within theconservation district is further divided into five sub-zones:Protected, Limited, Resource, General, or Special.1 5

Presently, about forty-eight percent of Hawai'i's land area isdesignated conservation, forty-seven percent agricultural, fivepercent urban, and less than half a percent rural.16 Currently, thislast classification is expanding, converting land from theagricultural districts, to accommodate rural residential

6. HAW. REV. STAT. § 205-1 (2011).7. Id. § 205-2.8. Id.9. Id.

10. Id.11. Id.12. Id. § 205-43.13. For a brief overview of the land use law and its districts, see DAVID

KIMO FRANKEL, PROTECTING PARADISE: A CITIZEN'S GUIDE TO LAND & WATERUSE CONTROLS IN HAWAII 4-7 (1997).

14. HAW. REV. STAT. § 205-2 (2011).15. HAW. CODE R. § 13-5-10 (LexisNexis 2011).16. See Haw. State Dep't of Bus., Econ. Dev. & Tourism, Land Use Comm'n

Records, Table 6.04- Estimated Acreage of Land Use Districts, By Island, THESTATE OF HAWAII DATA BOOK 2007 (Dec. 31, 2006), available athttp://hawaii.gov/dbedt/info/economic/databook/db2007/sectionO6.pdf (provid-ing a breakdown of the land uses on each island). Land classified as rural mayincrease as landowners increasingly use it for small residential estatesformerly permitted in the agricultural district.

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development in the wake of the lengthy litigation that occurredover large-lot resort/residential development on agricultural-zonedland on the island of Hawai'i between 1995 and 2005.17 Given thesteady demand for residential, commercial, and resort/residentialreal estate in Hawai'i, coupled with the comparatively tiny(approximately five percent) percentage of land classified urban orrural, landowners expend much time and energy seeking toreclassify agricultural (and occasionally conservative) land intoone of the other development-oriented districts.

This state-level district classification system is akin to azoning scheme. As described below, Hawai'i's four counties retainmost of the regulatory authority to further classify land in theurban district for typical urban uses. Only low-density residentialuse is permitted (jointly by the LUC and the counties) in the ruraland agricultural districts, and virtually no economically beneficialuses at all are permitted in the conservation district, much ofwhich is publicly owned. In sum, the counties control uses withinthe urban district, the counties and the state jointly control uses inthe agricultural and rural districts, and the state controls uses inthe conservation district.18

Permitted uses in agricultural districts include: thecultivation of crops, orchards, and forests; animal husbandry; fishfarming; wind farms; solar energy facilities (in land designated tohave limited farming potential); scientific monitoring stations notequipped for use as a residence; agricultural tourism on workingfarms; and open area recreational facilities. Employee housing,mills, storage facilities, and other buildings related to farming arepermitted for "[b]ona fide" agricultural uses.19 Land currently orpreviously used by a sugar or pineapple plantation may containhousing for employees or former employees. Construction of single-family homes is also permitted on lots in the agriculture districtsubdivided before June 4, 1976.20 The subdivision of agriculturalland, especially prime agricultural land with high quality class Aor B soil, is subject to special requirements, such as that the use ofthe land be primarily agricultural. 21 Aside from specified

17. Kelly v. 1250 Oceanside Partners, Civ. No. 00-1-0192K (3d Cir. Ct.Haw. Sept. 9, 2003) (Findings of Fact, Conclusions of Law, Order RegardingTrial on Count IV of the Fifth Amended Complaint). Kelly v. 1250 OceansidePartners, No. 00-1-0192K, 2006 WL 4077352 (Haw. Cir. Ct. Mar. 14, 2006)(Fourth Amended Final Judgment). The litigation was settled by the partiesbefore the Hawai'i Supreme Court had the opportunity to rule on thelawfulness of such residential development and the meaning of "farmdwelling."

18. HAw. REV. STAT. § 205-2 (2011).19. Id. § 205-4.5.20. Id.21. Id. §§ 205-5.4(b), 205-4.5(f).

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exceptions, residential uses beyond "farm dwellings" aretheoretically prohibited. In practice, however, all four of Hawai'i'scounties have for decades permitted large-lot residentialsubdivisions so long as there is some demonstrable agriculturaluse on the lot or on common open space. 22 This is tolerated largelybecause of inadequate statutory and common law definitions of"farm buildings" and agricultural use. Golf courses and golfdriving ranges, however, are not permitted "open spacerecreational" uses unless approved by a county before July 1,2005.23

A LUC survey of land parcels in the agricultural division ofHawai'i County revealed that seventy-eight percent are smallerthan five acres, averaging 1.24 acres in size-altogether only89,095 acres. 24 By statute, the agricultural district specificallyincludes lands "that are not used for, or that are not suited to,agricultural [uses]," such as lava flow land and desert, lendingcredence to the suspicion that in some quarters, particularly withthe demise of plantation agriculture, the district has become a defacto open space district.25

The rural districts may contain low-density residential uses,agricultural uses, golf courses and related facilities, and publicutilities.26 The density of dwellings in rural districts generallymust not exceed one per half acre, though variances may begranted for "good cause."27 Although only a tiny fraction of stateland is now classified as rural, that is changing as landownerstake advantage of the 2008 amendments to the Land Use Law,and seek to reclassify agricultural land to rural for large-lotresidential development projects. This new reclassification hascaused increasing state and county resistance to all but truly

22. See, e.g., the factual context in Save Sunset Beach Coal. v. City andCnty. of Honolulu, 78 P.3d 1 (Haw. 2003) (detailing how plaintiffs brought anaction to prevent a residential development on lands previously designated foragricultural use).

23. HAw. REV. STAT. § 205-4.5(d) (2011).24. Rory Flynn, Seeing Through the Fog of 'Fake Farms,' HAW. REPORTER,

Jan. 30, 2007, available at http://www.hawaiireporter.com/seeing-through-the-fog-of-fake-farms/123. See also Adrienne Suarez, Avoiding the Next Hokulia:The Debate over Hawaii's Agricultural Subdivisions, 27 U. HAW. L. REV. 441(2005) (discussing the struggle to balance Hawai'i's finite resources betweenhousing for a growing population and agricultural needs). For a decidedlycontrary view, see Nathan Roehrig, Urban Type Residential Communities inthe Guise of Agricultural Subdivisions, 25 U. RAW. L. REV. 199 (2002).

25. RAW. REV. STAT. § 205-2(d) (2011). See Norman Cheng, Is AgriculturalLand in Hawaii "Ripe" for a Takings Analysis?, 24 U. HAW. L. REV. 121, 140-41 (2001) (discussing the ease by which a petitioner can utilize agriculturalland for other puposes).

26. HAW. REV. STAT. § 205-5 (2008).27. Id. § 205-5(c).

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agricultural uses in the large agricultural district following severallong and costly lawsuits challenging residential use on landclassified as agricultural. 28

Once so classified by the LUC, urban districts are whollycontrolled by the counties; all uses permitted by county ordinancesor zoning rules are permitted in urban districts.29

Conservation districts are specially protected by the state,and are governed by the State Department of Land and NaturalResources ("DLNR"). The state seeks to "conserve, protect, andpreserve the important natural resources of the [s]tate throughappropriate management and use to promote their long-termsustainability and the public health, safety and welfare."30

Consequently, virtually no structural development is permitted inthe conservation district (except an occasional single-family house,as noted below), a change from the practice of the LUC in the1960s and 1970s when recreational facilities, resorts, and a collegecampus were developed on conservation district land.31

The DLNR further divides the conservation district intosubzones that permit different uses: (1) Protective; (2) Limited; (3)Resource; (4) General; or (5) Special. 32 The Protective subzone isintended to protect valuable watersheds, historic sites, and theecosystems of native species. A few activities, like removing deadnon-native or small trees, do not require a permit (removing ahazardous tree, on the other hand, requires submittingdocumentation). Most uses, however, will require documentationof the need and/or a permit. Permitted uses include naturereserves and scenic areas; restoring fishponds; agriculture and asingle-family residence when such use was "historically,customarily, and actually found on the property"; public facilitieslike transportation systems, water systems, and recreationalfacilities; and the maintenance, replacement, operation, andrenovation of existing structures. A subdivision (not to be confusedwith residential development) may be approved when it "serves apublic purpose and is consistent with the objectives of the[Protective] subzone."33

The Limited subzone is intended to prevent uses where

28. See Kelly v. 1250 Oceanside Partners, 140 P.3d 985 (Haw. 2006)(evidencing the public backlash against large-scale developers moving intopreviously designated agricultural land); see also Save Sunset Beach Coal., 78P.3d 1 (showing that the local population is against proposed residentialdevelopment on agriculturally designated land).

29. HAW. CODER. § 15-15-24 (LexisNexis 2011).30. HAW. REV. STAT. § 183C-1 (2008).31. Madalyn Purcell, Residential Use of Hawaii's Conservation District, 14

U. HAW. L. REV. 633, 649-50 (1992).32. HAW. CODER. § 13-5-10 (LexisNexis 2011).33. Id. § 13-5-22.

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"natural conditions suggest constraints on human activities" toprevent erosion, floods, or build up in areas vulnerable to naturaldisasters.34 It includes all the permitted land uses in theProtective category. Additional permitted land uses are a smallamount (less than one acre) of agriculture with a permit, or alarger amount with both a permit and a management plan. Inaddition, botanical gardens, erosion control devices, landscaping,and single-family residences in floodplains or coastal high hazardareas that conform to flood control regulations are permitted.35

The Resource subzone consists mainly of parkland, landsuitable for lumber, and land suitable for recreational outdooractivities like hiking and fishing, offshore islands, and wet sandbeach areas.36 Permitted uses include astronomy facilities,commercial forestry, artificial reefs, mining, and single-familyhomes, in addition to the uses permitted in the Protective andLimited subzone.

The General subzone is dedicated to open space where urbanuse is not desirable, but without defined conservation uses.37 Thisincludes open space (but no golf courses) and other land uses,"which are consistent with the objectives of the general subzone." 38

Finally, the Special subzone is for areas "possessing uniquedevelopmental qualities."39 This classification allows for a uniqueuse on a specific site. Examples include Koko Head's Sea Life Parkspecial subzone for recreational, education, and commercialpurposes; Kaneohe's Haka site for cemetery purposes; andHonolulu's Kapakahi Ridge for nursing or convalescent homepurposes. 40

In agricultural and rural districts, a landowner who wishes tomake use of the land for "certain unusual and reasonable uses" ina manner not enumerated by statute may petition for a specialpermit from the relevant county planning commission (for landunder fifteen acres) or from both the county planning commissionand the LUC (for land over fifteen acres).41 Although the countiesand the state share jurisdiction over land use in the rural andagricultural districts, it is each county's responsibility to enforcethe State Land Use Law in both.42

34. Id. § 13-5-12.35. Id. § 13-5-23.36. Id. § 13-5-15.37. Id. § 13-5-14.38. Id. § 13-5-25.39. Id. § 13-5-15.40. Id. Exhibit 2.41. HAw. REV. STAT. § 205-6 (2011).42. Id. § 205-12, Opinion of the Att'y Gen., 70-22. See also Cnty. of Haw. v.

Ala. Loop Homeowners, 203 P.3d 676 (Haw. Ct. App. 2009) (recognizing that itis the county's responsibility to enforce the state agricultural land use law),

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Alternatively, a conservation district landowner wishing tomake any use of his or her land must submit a ConservationDistrict Use Application ("CDUA") to the Department of Land andNatural Resources ("DLNR").43 The special permit and CDUAprocesses are described below. Besides permits, a landowner alsohas the option of requesting his or her land be reclassified fromone district to another (a so-called "boundary amendment") or,within the conservation district, from one sub-zone to another, toallow for his or her proposed use. The Hawai'i legislature has alsoenacted new legislation that fast-tracks and streamlinesreclassification of agricultural land to the other districts inexchange for designating other land Important Agricultural Land("IAL"). Finally, a landowner may petition the LUC for a"declaratory order" interpreting its rules regarding the permissibleuses of the landowner's land. These processes are also describedbelow.

B. The Special Use Permit Process

Within agricultural and rural districts, Hawai'i's Land UseLaw specifically permits a landowner to seek a "special permit" foruses otherwise not permitted. The county planning commissionshave jurisdiction over such special use permits-for "certainunusual and reasonable uses"-within these districts for parcelsless than fifteen acres in size. 44 For parcels more than fifteenacres, or land designated IAL, special permits are subject to theapproval of both the relevant county planning commission and theLUC.45 Criteria for determining that a use is "unusual andreasonable" are: (1) the use is not contrary to the objectives of theLUC statute and administrative rules (which are not explicitlystated in the statute); (2) the use would not "adversely affect"surrounding property; (3) the use would not "unreasonably burdenpublic agencies" to provide infrastructure such as roads andsewage systems; (4) whether "unusual conditions, trends, andneeds have arisen since district boundaries and rules wereestablished"; and (5) whether the land in question is "unsuited forthe uses permitted within the district."46 The State AttorneyGeneral has also opined, "[the purpose of a special use permit is to]provide a landowner relief in exceptional situations that would notchange the essential character of the district nor be inconsistenttherewith, and is basically analogous to a variance."47 The fifth

vacated, 235 P.3d 1103 (Haw. 2010).43. HAW. CODE R. § 13-5-30 (LexisNexis 2011).44. HAW. REV. STAT. § 205-6 (2011).45. HAW. CODE R. § 15-15-95 (LexisNexis 2011).46. Id.47. Neighborhood Bd. No. 24 v. State Land Use Comm'n, 639 P.2d 1097,

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factor is illustrated by the large amount of lava field land beingclassified within the "agricultural" district, a classificationtheoretically designated for land with a "high capacity" forcultivation. In the agricultural district, special permits may beissued for land uses supporting ecotourism related to thepreservation of threatened or endangered species. Moreover,although the counties generally prescribe uses in the rural district,there is one circumstance under which the LUC has jurisdiction: alandowner seeking a variance from the statutory minimum lot sizerequirement must also apply for a special permit from the LUC.48

To approve a special use permit, the relevant county planningcommission must determine, by majority vote, that the use wouldpromote the effectiveness and objectives of the Land Use statute.49

The commission may impose conditions upon issuance of thespecial use permit, including, for example, time limits.50 Overuseis discouraged, and the Hawai'i Supreme Court has specificallyheld that such permits may not be used to circumvent the need fora boundary amendment, particularly for large and intrusiveprojects.51 However, the same court permitted a golf course byspecial permit, even though the Land Use Law specifically forbadethem in the agricultural district where the applicant planned todevelop it.52

Several cases have further defined what is permitted underthe land use law. In Curtis v. Board of Appeals, a cellular phonetower was not considered a "communications equipment building"or a "utility line," both of which would be permitted uses of right inan agricultural district.53 Noting that such an expansionaryreading of the term "utility line" would frustrate the State LandUse Law's goals of protection and rational development, theHawai'i Supreme Court found telecommunications towers and

1102 (Haw. 1982) (recognizing the undesirability of "unlimited use of thespecial permit to effectuate essentially what amounts to a boundary change"that "would undermine the protection from piecemeal changes to the zoningscheme guaranteed landowners by the more extensive procedural protectionsof boundary amendment statutes.").

48. HAW. REV. STAT. § 205-2(c) (2011).49. Id. § 205-6(c).50. Id.; HAW. CODER. §§ 15-15-95, 96 (LexisNexis 2011).51. Neighborhood Bd. No. 24, 639 P.2d at 1102.52. Maha'ulepu v. Land Use Comm'n., 790 P.2d 906 (Haw. 1990). See

Douglas Ushijima, Maha'ulepu v. Land Use Comm'n: A Symbol of Change;Hawaii's Land Use Law Allows Golf Course Development on PrimeAgricultural Land by Special Use Permit, 13 U. HAW. L. REV. 205 (1991)(explaining that the Maha'ulepu court allowed the development of a golfcourse by special permit on land in an agricultural district where golf courseswere specifically forbidden).

53. Curtis v. Bd. of Appeals, 978 P.2d 822, 835 (Haw. 1999); HAW. REV.STAT. § 205-4.5(a)(6) (2011).

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antennas "novel and unique use[s]" requiring a special permitabsent enumeration in the statute. 54 Later, however, in T-MobileUSA, Inc. v. County of Hawai'i Planning Commission, the courtallowed as of right a "stealth antenna" concealed completelywithin a false chimney and with all related equipment kept in agarage.55 In distinguishing Curtis, the court pointed out the entirestructure would be concealed in a chimney and garage, bothstructures being permitted uses, and that the concealed antennawould not undermine the State Land Use Law's objectives. 56

C. The Conservation District Use Application Process ("CDUA")

The DLNR controls uses within the conservation district. Inorder for a landowner to make use of his or her conservation land,the landowner must go through the DLNR's CDUA permittingprocess. First, however, the owner must go through the countySpecial Management Area ("SIA") review process. Through thisreview process, the county must either: (1) determine that theproposed land use is outside the S1VIA; or (2) determine that theproposed land use is exempt. Otherwise, the landowner mustinclude the SMA permit in the CDUA application.

Under the next step of the CDUA process, the landownermust include basic information about himself or herself, adescription of the land, plans for the proposed use includingmaintenance and management plans, a filing fee, and a draftenvironmental assessment of the proposed use.

Finally, the landowner must indicate for which of thefollowing permits he or she is applying: (1) a departmental permit;(2) a board permit; (3) an emergency permit; (4) a temporaryvariance; (5) a site plan approval; or (6) a management plan. Thetype of permit required is determined by the sub-zone in which theland is located and the use proposed.5 7 For example, a landownerwith land in the protective sub-zone who wishes to post signsshould apply for a site plan approval, while a landowner with landin the limited sub-zone who wishes to create botanical gardensmust have a management plan in place and obtain a board permit.

A public hearing is required for any application involving landuses for commercial purposes, changes in identified uses, uses inthe protective sub-zone, and proposed land uses affecting thepublic interest.5 8 The applicant has the burden of demonstratingthat the proposed land use is "consistent with the purpose of the

54. Curtis, 978 P.2d at 835.55. T-Mobile USA, Inc. v. Cnty. of Haw. Planning Comm'n, 104 P.3d 930,

938 (Haw. 2005).56. Id. at 941.57. Haw. Code R. § 13-5-30 (LexisNexis 2005).58. Id. § 13-5-40.

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conservation district" and sub-zone in which the use will occur,will comply with Coastal Zone Management statutes and rules,will not cause "substantial adverse impact to existing naturalresources" within the region or community, will at the very leastpreserve "natural beauty and open space characteristics" of theland, and fulfill the general catch-all requirement that theproposed use not materially harm "public health, safety, andwelfare." Subdivision of land is not allowed to increase the"intensity" of land uses in the conservation district.59

D. Conservation District Sub-Zone Reclassification

If the use to which a landowner wishes to put conservationland would otherwise be prohibited within the relevant sub-zone,the landowner may request to have the land reclassified to a sub-zone that permits the use. The conservation district sub-zonereclassification process requires the landowner to propose anadministrative rule change, which is processed as an amendmentto the DLNR's regulations. To consider a reclassification request,the DLNR requires: information on the landowner and property,including geographic, climatic, hydrological, and biologicalcharacteristics; information on historic properties located in thearea; scenic or visual resources; infrastructure evaluations; and areview of the property's characteristics in relation to sub-zoneobjectives.

E. District Boundary Amendment

A landowner denied a use within a designated district maypetition the LUC to reclassify the land into a more intensive usedistrict, e.g., from conservation or agriculture to urban, through aDistrict Boundary Amendment ("DBA"). The LUC processes allDBAs for conservation land, as well as for parcels larger thanfifteen acres in urban, rural, and agricultural districts. Therelevant county planning commission processes applications forDBAs of parcels less than fifteen acres in the rural, urban, andagricultural districts. After proper notice and the filing of thepetition and fees, the LUC holds a "contested case" hearing.6 0

Thus, DBAs are generally considered to be non-legislative acts,though whether such a conclusion would or should be applied toDBAs resulting from five-year reviews of state boundaryclassifications is dubious, as this would reflect a policydetermination of a more general nature than a DBA petition.6'

59. Id. § 13-5-30(c).60. See Town v. Land Use Comm'n, 524 P.2d 84, 96 (Haw. 1974) (noting the

LUC procedure to hold a contested case hearing).61. See, e.g., Fasano v. Bd. of Cnty. Comm'rs, 507 P.2d 23 (Or. 1973)

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The LUC uses the following criteria in determining whetherto reclassify the subject land: whether reclassification is inaccordance with the goals, objectives, and policies of the Hawai'iState Plan (discussed infra); district standards; impact uponhabitat, historical, natural, or cultural resources, particularly thecultural resources of Native Hawai'ians;62 consequences fornatural resources relevant to Hawai'i's economy; whether there isa commitment of state funds; employment opportunities andeconomic development; housing opportunities for all income levels;the county general plan and all community or communitydevelopment plans relating to the land subject to thereclassification petition; and the representations andcommitments made by the petitioner. The LUC must also closelyscrutinize reclassifications of intensively cultivated agriculturallands under the recently enacted Important Agricultural Landsstatute.63 The LUC may approve the reclassification if it will notimpair nearby agricultural production or is necessary for urbangrowth. The overall standards for approving DBAs is, by a clearpreponderance of the evidence, whether the DBA is reasonable,does not violate the statute that governs land districts, and isconsistent with the Hawai'i State Plan.64 Six affirmative votesfrom the nine-member LUC are necessary to approve a DBA, andthe LUC may choose to impose conditions that run with the land.The LUC may impose sanctions for failing to observe conditions,including down-zoning land to "uphold [] the intent and spirit" ofthe statute and "assure substantial compliance withrepresentations made by the petitioner."65 Thus, for example, theLUC has threatened to return land classified as urban to itsformer agricultural classification for failure of the landowner-developer to commence development in a timely manner. 66

Whether it may legally do so depends largely upon how one viewsthe nature of the boundary amendments. Cases and commentatorsare by and large critical of such "rezonings" merely for failure toproceed with a particular project.67

(analyzing the fine line of treating cases as judicial versus legislative).62. See Ka Pa'akai o ka 'Aina v. Land Use Comm'n, 7 P.3d 1068 (Haw.

2000) (discussing the obligations of the LUC).63. HAw. REV. STAT. § 205-17 (2011).64. Id. §§ 205-4, 205-16.65. Id. § 205-4(g); see also Lanai Co. v. Land Use Comm'n, 97 P.3d 372

(Haw. 2004) (analyzing the power of the LUC).66. Taylor Hall, Big Island Project May Get Second Chance, HONOLULU

ADVERTISER, June 6, 2009, at B-5.67. See, e.g., Scrutton v. Cnty.- of Sacramento, 79 Cal. Rptr. 872 (Cal. Ct.

App. 1969) (noting the limits of power in rezoning); but see the much-criticalIllinois case of Goffinet v. Christian Cnty., 357 N.E.2d 442 (Ill. 1976) (findingthat conditional rezoning is not invalid on its face).

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The LUC approves most petitions for DBAs. Every five years,the Office of Planning ("OP") is required to review all DBAs in thestate,6 8 an obligation which it has rarely met, particularly in thepast fifteen years; OP last undertook such a review in 1991. Thislack of overall boundary review has probably contributed to theLUC's tendency to focus on individual parcels to the detriment of astatewide overview.

Several Hawai'i cases have further interpreted andelaborated upon the LUC's obligation under the Land Use Law.First, under Kilauea Neighborhood Association v. Land UseCommission, the LUC must make specific findings with regards toeach criterion for reclassifying district boundaries when approvinga District Boundary Amendment.6 9 Second, according to KaPa'akai o ka 'Aina v. Land Use Commission, in approving aDistrict Boundary Amendment, the LUC must take into accountthe impact of reclassification on native Hawai'ian rights.Specifically, the Hawai'i Supreme Court held that the LUC maynot delegate to a landowner its constitutional and statutoryobligation to protect native Hawai'ian customary rights, and mustmake specific findings and conclusions regarding:

1) the identity and scope of valued cultural, historical, or naturalresources in the petition area, including the extent to whichtraditional and customary native Hawaiian rights are exercised;

2) the extent to which those resources, including traditional andcustomary native Hawaiian rights, will be affected or impaired bythe proposed action; and

3) the feasible action, if any, to be taken by the Land UseCommission to reasonably protect Native Hawaiian rights if theyare found to exist. 70

The Ka Pa'akai o ka Aina decision has been criticized formisunderstanding the responsibility of the LUC in the DistrictBoundary Amendment process. A DBA provides a landowner withconsiderable discretion in future uses of the land, making it oftenimpossible to speculate about the effects of a DBA on nativeHawai'ian, or any other rights or resources, given the variety ofpossible uses of land that may result from such a BoundaryAmendment. Moreover, many such uses are impossible withoutcounty concurrence or approval.

68. HAW. REV. STAT. § 205-18 (2008).69. Kilauea Neighborhood Ass'n v. Land Use Comm'n of State of Hawaii,

751 P.2d 1031, 1034-35 (Haw. Ct. App. 1988).70. Ka Pa'akai o ka 'Aina, 7 P.3d at 1084.

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F. Declaratory Orders

Any interested person may also petition the LUC to issue adeclaratory order.71 A declaratory order indicates how the LUCwould interpret its own rules with regard to a particular parceland use within it. After receiving a petition for a declaratory order,the LUC may deny the petition, issue a declaratory order, or set ahearing, which may or may not be of the contested case varietyrequired for DBAs. 72 The LUC will not issue declaratory orders forquestions that are speculative or hypothetical, for petitions inwhich the petitioner would not have standing in a judicial action,for questions affecting the interests of the LUC in pendinglitigation, or questions beyond the LUC's jurisdiction.73

G. Important Agricultural Lands

The state legislature created a major new land sub-classification, Important Agricultural Land ("IAIL"), viaamendments to the Land Use Law in 2005. Recognizing a"substantial interest" in the survival of the agricultural industryin Hawai'i, these amendments sought to provide incentives tolandowners to preserve lands capable of producing high yields foragricultural purposes, even if the lands were not currently put tosuch use.74 The designation is thus a carrot to landowners topreserve large blocks of contiguous fertile land from creepingurbanization and fragmentation. Among other stated aims, thelaw seeks to "ensure that uses on important agricultural lands areactually agricultural uses" and attempts to avoid theirdevelopment as large-lot residences with little actual agriculturaluse, as illustrated by the so-called "fake farm" phenomena thatbrought luxury homes to lands designated for agriculture.75 Thefirst IAL designation by the LUC occurred in March of 2009, whenapproximately 3770 acres on Kaua'i, owned by a subsidiary ofAlexander & Baldwin, were reclassified.

IAL designation criteria include whether the land is alreadyused for farming, the quality of the soil, the sufficiency of waterand infrastructure (including convenience of transportation ofagricultural goods), and whether the land is associated withtraditional native Hawai'ian agriculture, such as taro farming.76

The designation is fairly flexible; an IAL candidate need not meetevery criterion. Indeed, a parcel meeting any of the criteria must

71. HAW. CODE R. § 15-15-98 (LexisNexis 2005).72. Id. § 15-15-100.73. Id. § 15-15-102.74. HAW. REV. STAT. § 205-41 (2008).75. Id. § 205-43.76. Id. § 205-44(c)(4).

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receive "initial consideration." The LUC also requires acertification issued by the Department of Agriculture as to thequality of the land to be designated IAL; at a minimum, the landmust have "sufficient quantities of water to support viableagricultural production" and "contribute[] to maintain[ing] acritical land mass important to agricultural productivity."

The classification process begins with either a petition from alandowner or a county action. A two-thirds majority of the LUC isrequired to designate lands IAL at the request of a landowner.77 Inthe second category, the county must make designations based onmaps and in consultation with landowners and various interestgroups. The county departments must include the position of theowners of the land to be designated in their final recommendation,along with comments from other interest groups, the viability ofexisting agribusinesses, and its conformity with the criteria. Thecounty council ultimately makes the decision, which is reviewed bythe LUC. 78 Lands designated as IALs are eligible for incentiveprograms, including grant assistance, tax offsets, enhanced accessto water, and agricultural training.7 9

IALs are subject to extra considerations and requirements forspecial use permits, rezoning, and district boundary amendments.Like land areas greater than fifteen acres, such actions pertainingto LALs require processing by both the LUC and the relevantcounty.80 The state must find that the public benefit from theproposed action is justified by a need for additional land fornonagricultural purposes, that the action will not harm existingagricultural enterprises, and that the proposed action has "nosignificant impact upon the viability" of neighboring agriculturaloperations that may share marketing or infrastructure costs.Absent landowner request, the IAL designation may also beremoved if, through no fault of the landowner, there is no longer asufficient supply of water to allow profitable farming.8 ' IAL mapsmust be reviewed at least once per decade but not more often thanonce every five years.

In 2008, incentives to classify land as IAL commenced inearnest with the adoption of additional statutory amendments.The amendments enact the incentives noted above, expanding onthe promised tax credits, providing for the state to guarantee loansby commercial lenders to agricultural producers, and mandatingpriority processing for agricultural permits. Moreover, the

77. HAw. CONST. art. XI, § 3 (requiring a two-thirds majority forreclassification or rezoning action).

78. HAW. REV. STAT. §§ 205-47, 49 (2008).79. Id. § 205-46.80. Id. § 205-3.1.81. Id. § 205-50(g).

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amendments allow the building of farm dwellings, but only if usedexclusively by employees who actively work on the land andimmediate family members. Such dwellings cannot occupy morethan five percent of the total IAL or fifty acres, whichever is less.No residential subdivisions are permitted, but farmers may clusterdwellings together to preserve agricultural space. These portionsof the 2008 amendments are uncontroversial.

Of greater importance to land use is a reclassification landswap. In exchange for landowner designation of large tracts ofcontiguous arable land, the LUC will by a declaratory orderfacilitate the reclassification of a smaller amount of agriculturedistrict land to urban, conservation, rural, or a combinationthereof. The land to be so reclassified need not be contiguous withthe proposed IAL, though it must be in the same county. Thisreclassification may apply up to fifteen percent of the land; thus,at least eighty-five percent of the land must be designated IAL. Ifthe owner seeks less than fifteen percent of the land to bereclassified rural, urban, or conservation, the landowner earns a"credit" for the difference. The credit is valid for ten years but maynot be transferred to another person.82

Procedurally, a landowner petitioning to reclassify land IALmay, within that petition, seek the above-described land swapreclassification. The LUC will review the suitability of thereclassification to urban, rural, or conservation, and may include"reasonable conditions" in the declaratory order. If it fails toapprove either reclassification, the IAL designation, or the landswap designation, the petition is denied entirely. Additionally,land swap reclassifications to the urban district must be consistentwith the relevant county general development plan.

What distinguishes the land swap from a more conventionalDBA, besides a presumably greater propensity on the part of theLUC for approval, is that the new law contains no provision for acontested case hearing. This accelerates the reclassificationprocess by avoiding the delays associated with the public reviewprocess otherwise required under the ordinary system for DBAs.Land swap reclassification approval is conditioned only uponmeeting the suitability requirements and a two-thirds vote by theLUC.83 The LUC possesses "the sole authority to interpret theadopted map boundaries delineating the [IAL]."84 Of course, landso reclassified is still subject to permitting requirementsassociated with the reclassified district, county plans, and countyzoning restrictions.

82. Id. § 205-45(h)(2).83. Id. § 205-45(e)(3).84. Id. § 205-49(c).

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Land use is restricted by more than just district boundaries,however. State agencies making land use decisions must conformtheir rulings to the overall theme, goals, objectives, and policies ofthe comprehensive state plan, enacted as a statute.

III. THE STATE PLAN: A NEW DIRECTION SINCE QRHawai'i is unique among the fifty states in having converted

its state general plan into a statute, Act 100, which made it thefirst state to enact a comprehensive state plan. The writing of theplan into the statutory code transformed what is in most states apolicy document into a set of preeminent legal requirements. 85 Itspassage by the Ninth State Legislature in 1978 represented notonly a milestone for the state-indeed, the governor ranked itsecond only to the State Constitution in importance-but also forthe nation.86 Notably, a State Land Use Law amendment to LandUse Commission standards for deciding boundary amendments,providing no such boundary amendment can be adopted unless itis in conformance with the State Plan, adds considerably to theState Plan's legal significance in Hawai'i.87

A. The State Plan

The culmination of efforts having begun in 1975, the StatePlan is the product of three years of intense work by the then-Department of Planning and Economic Development (now theDepartment of Business, Economic Development & Tourism, or"DBEDT"), that included an inventory of goals, objectives, andpolicies; a statewide household survey; technical studies; issuepapers; public workshops and hearings; the creation of a policycouncil; and intense lobbying in the legislature. Its major areas ofconcentration were: population; the economy (tourism, defense andother federal spending, the sugar and pineapple industries,diversified agriculture, and potential new areas like motionpicture production); the physical environment; facility systems(water supply, transportation, energy, public utility facilities, solidand liquid waste disposal); and socio-cultural advancement(housing, health, education, social services, leisure activities,public safety, and cultural heritage).

The Hawai'i State Plan is divided into three major parts:

85. See Todd Eddins & Jerilynn Hall, Kaiser Hawaii Kai Development Co.v. City and County of Honolulu: Zoning by Initiative in Hawaii, 12 U. HAW. L.REV. 181 (1990) (analyzing the Hawai'i Supreme Court's ruling. The courtheld that initiative proposals adopted by the electorate to downzone two tractsof land from residential to preservation were invalid).

86. George R. Ariyoshi, Hawaii 2050, HAwAII BUSINESS (May 2006),http://www.hawaiibusiness.com/Hawaii-Business/May-2006/Hawaii-2050/.

87. HAW. REV. STAT. § 205-16 (2008).

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overall theme, goals, objectives and policies; planning coordinationand implementation; and priority guidelines.8 8 The Findings andPurposes statement of the Act sets out the rationale for the plan89 :

The legislature finds that there is need to improve the planningprocess in this State, to increase the effectiveness of governmentand private actions, to improve coordination among differentagencies and levels of government, to provide for wise use ofHawaii's resources and to guide the future development of theState.90

The purpose of this chapter is to set forth the Hawaii state plan thatshall serve as a guide for the future long-range development of theState; identify the goals, objectives, policies and priorities for theState; provide a basis for determining priorities and allocatinglimited resources, such as public funds, services, human resources,land, energy, water, and other resources; improve coordination offederal, state, and county plans, policies, programs, projects, andregulatory activities; and to establish a system for plan formulationand program coordination to provide for an integration of all majorstate, and county activities.9 1

The all-important implementation strategy is accomplishedthrough several mechanisms. To begin, a policy council of state,county, and public representatives was established to advise thelegislature and reconcile conflicts between the agencies and plansdescribed below. DBEDT provides technical assistance to thepolicy council, particularly by performing statewide policy analysisand reviewing recommendations on all state plan matters. Twelvestate functional plans92 define, implement, and conform to theoverall theme, goals, objectives, policies, and priority guidelines of

88. HAW. REV. STAT. §§ 226-2, 226-51, 226-101 (2008).89. See Kent M. Keith, The Hawaii State Plan Revisited, 7 U. HAW. L. REV.

29 (1985) (reviewing the origin and content of the state plan, the state planprocess, the amendments to the state plan made by the 1984 legislature, andthe uses of the plan); Michael Dowling & James Fadrowsky, III, Dolan v. Cityof Tigard Individual Property Rights v. Land Management Systems, 17 U.HAW. L. REV. 193 (1995) (analyzing relevant parts of the Dolan court'sreasoning for its decision and examination of a "new" test for exactions,surveying the initial response to Dolan by various federal and state courts,and endeavoring to predict the impact of the decision of future litigation,especially within the context of the land management system in Hawai'i);Allan F. Smith, Uniquely Hawaii: A Property Professor Looks at Hawaii'sLand Law, 7 U. HAW. L. REV. 1 (1985).

90. HAW. REV. STAT. § 226-1 (2008).91. Id.92. State functional plans include: education, employment, health, housing,

human services, agriculture, conservation lands, energy, historic preservation,recreation, tourism, and transportation. The ten plans that were adopted in1984 differ from the current twelve plans. HAW. REV. STAT. § 226-52(a)(3)(2008).

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the State Plan.98 County general plans (general and development)must indicate desired population and physical developmentpatterns for each county and region within the county, and furtherdefine the overall theme, goals, objectives, policies, and priorityguidelines of the State Plan.9 4 State programs must conform toboth the State Plan (and apply its priority guidelines) and toapproved state functional plans.95 Therefore, while the countygeneral plans must take into account state functional plans andvice-versa, both functional plans and county general plans mustconform to the State Plan.96 Finally, priority guidelines addressareas of statewide concern.9 7 For example:

Protect and enhance Hawaii's shoreline open spaces and scenicresources.98

Utilize Hawaii's limited land resources wisely, providing adequateland to accommodate projected population and economic growthneeds while insuring the protection of the environment and theavailability of the shoreline, conservation lands and other limitedresources for future generations. 9

Encourage urban growth primarily to existing urban areas whereadequate public facilities are already available or can be providedwith reasonable public expenditures, and away from areas whereother important benefits are present, such as protection ofimportant agricultural land or preservation of lifestyles.100

The part of the State Plan dealing with implementation, andespecially conformance, is the most significant component for thepurpose of land use control. This is so because the State Plan, intheory, requires "conformance" to its policies, goals, objectives, andpriority guidelines across virtually the whole spectrum of stateland use actions. However, in 1984, the legislature definedconformance as a weighing of the overall theme, goals, objectives,and policies and a determination that an action, decision, rule, orstate program is both consistent with the overall theme and fulfillsone or more of the goals, objectives, or policies.1ol Under this newdefinition, conformance becomes relatively easy to accomplish, andnearly impossible to contest. This is particularly true now that"guidelines" have replaced "directions" in "statutory directions.""Guidelines" now means merely a "stated course of action which is

93. Id.94. Id. § 226-52(a)(4).95. Id. § 226-59.96. Id. §§ 226-55, 226-52(a)(4).97. Id. § 226-101.98. Id. § 226-104(b)(13).99. Id. § 226-104(b)(12).

100. Id. § 226-104(b)(1).101. Id. § 226-2.

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desirable and should be followed unless a determination is madethat it is not the most desirable in a particular case; thus aguideline may be deviated from without penalty or sanction."102

B. State Activities

Nevertheless, the State Plan requires that all state programsbe in conformance with its theme, goals, objectives, policies andpriority guidelines as well as with its twelve functional plans:"[t]he formulation, administration, and implementation of stateprograms shall be in conformance with the overall theme, goals,objectives, and policies and shall utilize as guidelines the priorityguidelines contained within this chapter, and the state functionalplans approved pursuant to this chapter."103 These state programsinclude, but are not limited to, those programs involvingcoordination and review; research and support; design,construction, and maintenance; services; and regulatory powers.State programs that exercise coordination and review functionsinclude, but are not limited to, the state clearing-house process,capital improvements program, and coastal zone managementprogram. State programs that exercise regulatory powers inresource allocation include, but are not limited to, the land useand management programs administered by the Land UseCommission and Board of the Department of Land and NaturalResources. State programs "shall" further define, implement, andconform to the overall theme, goals, objectives, and policies, andalso utilize as guidelines both the priority guidelines containedwithin this chapter, and the state functional plans approvedpursuant to the statute.104

Certain programs relating to budget review and land usecontrol are particularly singled out as "implementationmechanisms" for conformance with the overall theme, state plangoals, and objectives and policies (but are only to use as guidelinesthe priority guidelines of the Act, and the state functional plansapproved pursuant to this chapter). These are programappropriations, capital improvement project ("CIP") appropriation,budgetary review and allocation, "land use decision makingprocesses of state agencies" (such as the Land Use Commissionand the Board of the Department of Land and Natural Resources),and "all other regulatory and administrative decision-makingprocesses of state agencies." 05

Thus, the state's major land use decision-making body, the

102. Id.103. Id. § 226-59.104. Id. § 226-52(a)(5).105. Id. § 226-52(b)(2).

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LUC, is to some extent bound by the State Plan and itssubordinate functional plans in land reclassification (e.g., DBA)decisions. Interim guidelines for the use of the LUC were drafted,but failed to become law. As the LUC boundary amendmentguidelines set forth in amendments to the State Land Use Lawautomatically terminated in the summer of 1980, the LUC iswithout specific statutory guidance in the matter of land useboundary amendments until the Land Use Law is furtheramended. The functional plans implementing Act 100 now providea measure of guidance, executing as they do Act 100's statutorydirectives.

C. The Functional Plans

While broad policies are sketched in the State Plan, it is thefunctional plans to which state and county agencies were tooriginally look for guidance. The State Plan provides for thepreparation of twelve such plans addressing different policy areas:education, employment, health, housing, human services,agriculture, conservation lands, energy, historic preservation,recreation, tourism, and transportation. 106 Ten plans were adoptedin 1984, by concurrent resolution. 107 Five plans were revised in1989,108 and seven plans were revised in 1991.109 The functionalplans must define, implement, and conform to the overall theme,goals, objectives, policies, and priority guidelines contained withinthe statute. In the same paragraph, Act 100 directs that "countygeneral plans and development plans shall be taken intoconsideration in the formulation of state functional plans." 10 TheState Plan also sets out basic requirements for the functionalplans: "The functional plan shall identify priority issues in thefunctional area and shall contain objectives, policies, andimplementing actions to address those priority issues.""1

Originally, the responsibility for preparing each functionalplan was assigned to named state agencies, such as the DLNR andthe former DPED, but the duty of maintaining and creatingguidelines for the revisions of the functional plans was transferred

106. Information obtained from the State of Hawaii Office of Planning, June2, 2006.107. Plans that were adopted in 1984 are: conservation lands, energy, higher

education, health, historic preservation, housing, recreation, tourism,transportation, and water resources development. Since the amendments,water resources development is no longer a functional plan.108. Plans that were revised in 1989 are education, employment, health,

housing, and human services.109. Plans that were revised in 1991 are agriculture, conservation lands,

energy, historic preservation, recreation, tourism, and transportation.110. HAw. REV. STAT. § 226-52(a)(3) (2008).111. Id. § 226-55(b).

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back to the Hawai'i Office of Planning from the Department ofBudget and Finance in 2001.112 The State Functional Plans have"languished" since they were last updated in 1991.113

All of the state functional plans have the same framework.Each plan has three chapters. Chapter I, the first five or so pagesof each plan, is an introduction and is largely the same in eachstate functional plan. It follows a basic introduction with thepurpose, role, theme, advisory committee, and review, revision,and coordination processes of the state functional plans.

Chapter II addresses the approach to the specific functionalplan's issues. It consists of a long-term philosophy statement, anoverview of the specific functional plan, the objectives and scope ofthe functional plan, the coordination of the specific functional planwith other state functional plans, and the issue areas addressed inthe functional plan.114 For example, in the State ConservationLands Functional Plan ("SCLFP"),115 Chapter II articulates theoverall theme and goals of the Hawai'i State Plan, describes howfurther growth in the population and economy of Hawai'i isinevitable but must be balanced with Hawai'i's need to minimizethe negative effects on the natural environment, and states whatmust be done to meet these statewide concerns. The brief overviewindicates that the plan addresses issues concerning theaquaculture industry and continued efforts to broaden public useof natural resources and lands while protecting and preservingland from overuse. The objective of the SCLFP is to provide for amanagement program balancing the use and protection of thestate's natural resources. The majority of the responsibility lieswith the state, though federal, private, and county assistance willalso play roles. The SCLFP is closely related to other statefunctional plans that are concerned with the use of naturalresources and/or environmental protection, including the Energy,Health, Historic Preservation, and Recreation plans. These plans

112. SUSTAINABILITY TASK FORCE, HAWAI'I 2050 SUSTAINABILITY PLAN:CHARTING A COURSE FOR HAWAI'I'S SUSTAINABLE FUTURE (Jan. 2008)[hereinafter HAWAI'I 2050 SUSTAINABILITY PLAN], available athttp://www.hawaii2050.org/images/uploads/Hawaii2050_PlanFINAL.pdf.113. Id.114. Some functional plans, such as the Historic Preservation State

Functional Plan (1991), do not have an overview, an objectives and scopesection, or a section on the coordination with other state functional plans, inChapter II. However, all state functional plans have the long-term philosophystatement and a main section on what issues are addressed in the specificfunctional plan.

115. DEP'T OF LAND AND NATURAL RESOURCES, THE HAWAII STATEFUNCTIONAL PLAN FOR HISTORIC PRESERVATION (1991), available athttp://www.hawaiistateassessment.infoflibrary/HawaiiStateFunctional.PlanHistPres_1991.pdf (in accordance with HAW. REV. STAT. § 226 (2005)).

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include many complementary as well as competing interests. Theplan is then divided into three issue areas directly related toplanning and management: (1) inventories of resources andbackground information and basic research; (II) management; and(III) education and public information.

Chapter III is the bulk of each functional plan. This chapter isparticularly significant as is declares the objectives, policies, andimplementing actions of the functional plan. Each issue area listedin Chapter III has several main objectives. Each objective hasmultiple related policies, and each policy has one or morecorresponding implementation actions. For instance, in ChapterIII of the State Conservation Lands Functional Plan, Issue Area Iis first stated. Then the first of two objectives of Issue Area I arelisted: establishment of databases for inventories of existing landsand resources. It is followed by the first of five policies within thesection: develop and maintain a centralized statewide database ofconservation areas and natural resources. A correspondingimplementation action is then stated: develop a centralized landinventory and natural resource database in conjunction with theState Geographic Information System. A lead organization,assisting organizations, a start date, a total budget estimate, atarget location, and comments are set forth with eachimplementing action.

D. County Plans

Finally, county general plans and development plans areintegrated with state functional plans. The "[c]ounty general plansor development plans shall further define the overall theme, goals,objectives, policies, and priority guidelines" of the State Plan.1"6

"The formulation, amendment, and implementation of countygeneral plans or development plans shall take into considerationstatewide objectives, polices, and programs stipulated in statefunctional plans."117 This directive is particularly critical to thecounty land use regulatory scheme, since most county land usecontrol schemes are tied so directly to their general ordevelopment plans that land use changes made contrary to those

116. HAw. REV. STAT. § 226-52(a)(4) (2005).117. Id. § 226-58(a). See also Lum Yip Kee, Ltd. v. City & Cnty. of Honolulu,

767 P.2d 815, 821 (Haw. 1989) (describing that where city council's action inamending development plans was consistent with policies and objectives ofstate functional plans, ordinance did not violate state planning actrequirement that counties "take into consideration state functional plans informulating and amending development plans."). For an extended discussionof the relationship between county, general, and development plans in adifferent context, see David L. Callies & Calvert G. Chipchase, WaterRegulation, Land Use and the Environment, 30 U. HAW. L. REV 49 (2007).

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plans are invalid. Thus, for example, in the City and County ofHonolulu City Charter, a provision requires all local zoning andsubdivision ordinances to conform to local development plans." 8

All of these detailed development plan elements must furtherdefine the provisions of the State Plan and take into considerationstatewide objectives, policies, and programs stipulated in statefunctional plans approved in consonance with this chapter. Countygeneral plans, and the more detailed development plans, are to: (1)be "formulated with input from the state and county agencies aswell as the general public; (2) take into consideration the statefunctional plans; and (3) be formulated on the basis of soundrationale, data, analyses, and input from the state and countyagencies and the general public."119 For example, where a countycouncil's findings stated "that studies were made, public hearingswere held, field investigations were conducted, public testimonywas considered," and findings were made that the amendment tothe development plan was consistent with policies and objectivesof the development and general plans, the ordinance did notviolate the state planning act requirement that countydevelopment plans be formulated with "input from state andcounty agencies and the general public," and on the basis of soundrationale, data, and analyses.120 However, Act 100 also makes itsown specific requirements with respect to both the manner offormulation and the contents of county general and developmentplans, providing "that any amendment to the county general planof each county shall not be contrary to the county charter."121

While there have been no substantive amendments to thestate planning system or its plans since the 1990s, a Hawai'i 2050task force was established to review the state plan and otherfundamental components of community planning, and to developrecommendations on creating the Hawai'i 2050 SustainabilityPlan for future long-term development of the state.122 The Hawai'i2050 Sustainability Plan was submitted for review in early2008.123 Paralleling the studies that went into the process todevelop the State Plan, the goals are divided into the economy; thephysical environment; and physical, social, and economic well-being.124 The Sustainability Plan is advisory only, but it contains a

118. HONOLULU, HAW., ORDINANCE § 6-1511 (2001), available athttp://wwwl.honolulu.gov/refs/rch/rcO6l5l1.pdf.119. HAW. REV. STAT. ANN. § 226-2 (LexisNexis 2005); Kaiser Haw. Kai Dev.

Co. v. City & Cnty. of Honolulu, 777 P.2d 244 (Haw. 1989).120. HAW. REV. STAT. ANN. § 226-58 (LexisNexis 2005); Lum Yip Kee, Ltd.,

767 P.2d at 815.121. HAW. REV. STAT. § 226-58(a) (2008).122. RAW. SESS. LAws (2005); HAW. REV. STAT. § 226-1 (2008).123. HAwAi'I 2050 SUSTAINABILITY PLAN, supra note 112.124. HAW. REV. STAT. § 226-4 (2008).

340 [45:317


number of specific goals and proposals. It proposes animplementing entity, "the Sustainability Council," that would be anon-regulatory body that would "promote sustainability,determine intermediate and long-term benchmarks, measuresuccess, coordinate cross-sector efforts and dialogue, and report togovernment and private sector leaders on progress." The Planpurports to provide "over-arching [s]tate goals" to guide thecounties in developing sustainable practices. Of the nine "priorityactions" for which the Plan suggested benchmarks, two have majorimplications for land use: (1) increasing affordable housing; thePlan estimates that between 2007 and 2011, there is a need for23,000 affordable housing units; and (7) increasing production oflocal foods and products. 125 The state's use of incentive programsand regulations to encourage agriculture will likely continue tohave land use implications for the foreseeable future.

Hawai'i's land use system and complicated interlockingplanning schemes are still evolving. The release of the Hawai'i2050 Sustainability Plan, though it speaks mainly in generalities,is the first return to comprehensive state planning since the early1980s. The Sustainability Plan may mark the beginning of arevival of state comprehensive planning. Recent legislation revealsa renewed interest in land use issues by the state legislature and awillingness to try new ideas. The agricultural land swap schemepromises new opportunities for rational development of Hawai'i'sislands.

IV. CONCLUSION: A REVOLUTION WHICH HAS RUN ITS COURSE

First, it is worth observing that Hawai'i's system of broadlydeciding what land should be developed and what should not hasbeen effective in preserving open land, whether in agriculture or inconservation uses, as well as preventing sprawl beyond existingareas for development, throughout the state, and in particular onO'ahu, the locus of the City and County of Honolulu, and the homeof eighty percent of the state's permanent residents. This isobvious from even the most cursory glance at land use maps fromthe early 1970s and those from the 1990s, the period of mostgrowth and development in Hawai'i. That said, the system isanything but problem-free.

A. Open Space: Use of Rural & Agricultural Lands andDefinition of Farm Dwellings

The Land Use Law provides little concrete guidance aboutwhat constitutes sufficient agricultural use and farm dwellings to

125. HAWAI'I 2050 SUSTAINABILITY PLAN, supra note 112, at 63-67.

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342 The John Marshall Law Review [45:317

qualify as permitted cases in the State Agricultural Classification.Moreover, all four of Hawai'i's counties have for two decadespermitted so-called "fake farms"-large-lot residentialdevelopments with some associated agricultural uses either on oroff such large lots, and they have done so with no significantobjection either from the Land Use Commission or the statelegislature. It should therefore have surprised no one that themuch maligned Hokulia resort/residential development on the BigIsland sought, and successfully obtained, county permits tocommence such development on state agriculturally classifiedland. Nor did the settlement of the ensuing litigation before theState Supreme Court could render a decision contribute to anycertainty. The Hokulia developer simply followed the practice inthe industry as the court has previously held it was entitled to do,all in accordance with a well-drafted and executed developmentagreement. The attempt to change the rules in the middle of thegame (as was duly noted and reported in The Wall Street Journal)sent a most unfortunate message to developers both in and out ofthe state about the security of land entitlements in Hawai'i.

In addition, there is the matter of open space preservation.The current Important Agricultural Lands statute has thecapacity to do much to ease the necessary conversion of pooragricultural land (recall our State Land Use Law specificallypermits so classifying land even if it is lava-flowed or so thinlysoiled that it is demonstrably useless for agricultural purposes) tosome kind of economically beneficial use (as required by the FifthAmendment to the U.S. Constitution as interpreted by the U.S.Supreme Court in Lucas v. South Carolina Coastal Council).However, the notion persists that agricultural land can continue tobe regulated for open space preservation under the guise ofprotecting conservation and agricultural values even when neitheris transparently possible.

This is true with the state's conservation zone as well. Anexample stems from the application of the U.S. EndangeredSpecies Act to that zone. The Act is designed to protect plant andanimal species listed by the U.S. Fish and Wildlife Service asendangered. Despite propaganda by various environmentalactivist groups, the listing goes well beyond cute-looking wolf orfox cubs, lovely wildflowers, or stands of stately Redwoods. The listin Hawai'i also includes tiny blind cave spiders and cephalopods. Itis to protect the latter that nearly one-quarter of the island ofKaua'i was originally designated as "critical habitat" by the U.S.Fish and Wildlife Service in the 1990s. While the federal statuteby its terms prohibits only certain federal activity in suchdesignated habitat, our State Land Use Law requires our StateLand Use Commission to designate land in the restrictive


conservation district for the protection of endangered species, andthen requires the State Department of Land and NaturalResources, through its governing Land Board, to place such landin the most restrictive of its four subdistricts. The result is almostcertainly to prevent all economically beneficial use of such land,resulting in a total regulatory taking of the subject property andrequiring compensation as if the land were condemned bygovernment. This is not only just plain wrong, but also almostcertainly is an unconstitutional regulatory taking of private landwithout compensation, as more fully described below.

B. Regulatory Takings After Lingle v. Chevron

While the 2005 Lingle v. Chevron case was about gas stationsand gas prices, a unanimous U.S. Supreme Court took the occasionto deliver a tutorial on takings jurisprudence, both regulatory andphysical. In particular, the Court reiterated two key standardsapplicable to land development regulations, whether at the stateor county level, based on previous holdings:126,127

If a regulation deprives a landowner of "all economically beneficialuse," then the Court will treat it as if government condemned theproperty. There is no defense. of necessity or harm preventionavailable. Only if government is codifying common law nuisance orbasing its law on some "background principle of a state's law ofproperty" such as custom or public trust can government escape therequirement to pay the landowner for that deprivation.

If a regulation only partially deprives a landowner of economicallybeneficial use, then the court must examine the character of thegovernmental regulation and its economic effect on the landowner,and in particular whether the law frustrates the distinct orreasonable investment-backed expectations of the regulatedlandowner.

An example under Honolulu's LUO occurs with respect todevelopment in the ordinance's Preservation 2 zoning category. Asnoted above, it is not constitutional for a regulation to deprive alandowner of all economically beneficial use of his or her land.However, the only permitted uses in this P-2 zone are vacationcabins and golf courses. But a small tract of P-2 cannot supportthe latter, and the former are permitted only as accessory uses tooutdoor recreational principle uses. Indeed, the use of a ridgeparcel so classified for vacation cottages has been denied by theDirector of the DPP on just such grounds: they appear to be aprincipal use, rather than an accessory use, and the parcel is toosmall to support a golf course. The situation raises total regulatory

126. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).127. Penn Cent. Transp. Co. v. New York, 438 U.S. 104, 123 (1978).

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takings problems, as a matter of constitutional law. The same isalmost certainly true for the state conservation zone (over fortypercent of the state land area) in which virtually no economicallybeneficial uses are permitted.

C. Land Development Conditions

Coupled with the land development permit process as itpresently exists, government imposes onerous conditions, oftenillegally, at the land reclassification stage, which lack either nexusor proportionality to a particular development. It is fair to requirethe land development community to bear a proportionate share ofthe costs of public facilities like public schools and parks andinfrastructure, such as streets, water, and sewer systemsgenerated by a new development. However, it is neither fair norlegal to foist "catch-up" infrastructure or social costs upon aparticular project which have virtually no effect upon such costs. Aprime example is the affordable housing requirement that theLUC requires as a condition of boundary amendment. First, a landreclassification is the wrong place to exact any land developmentconditions to ameliorate needs generated by a development, basedon the simple reason that there is no development yetcontemplated. Second, there is neither nexus nor proportionality.Every court which has rendered an opinion on such housingrequirements has required such a connection, particularly, and(for Hawai'i) most relevantly, the State of California and the 9thCircuit Court of Appeals. 128

Indeed, the matter of workforce/affordable housing exactionsmay well come to a head in Hawai'i over a most unusual StateLand Use Commission decision this past year to "revert" aboundary amendment reclassification of land from urban, whichwould have permitted a residential development and golf coursecoupled with some commercial development under the then-applicable county zoning code (which takes effect, recall, only onstate-classified urban land). Apparently, fed up with years of delayin the commencement of the project, and despite the constructionof a substantial number of affordable housing units before themarket-rate houses, the LUC first issued a statutorily-permitted"show cause" order asking why the property should not bereclassified back to its original agricultural classification (whichwould render all county permissions and zones moot unless rightsthereto had vested), and then unaccountably reclassified the

128. Commercial Builders of N. Cal. v. City of Sacramento, 941 F.2d 872,875 (9th Cir. 1991); Bldg. Indust. Ass'n of Cent. Cal. v. City of Patterson, 90Cal. Rptr. 3d 63, 72 (Cal. Ct. App. 2009); San Remo Hotel, L.P. v. SanFrancisco, 364 F.3d 1088, 1097-98 (9th Cir. 2004).

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property without all the hearings and findings required by statutefor such boundary amendment reclassifications. The case is now infederal court where the fairness of the housing exaction on alargely residential project is now an issue, together with theprocedural and substantive issues raised in the LUC's abruptreclassification. Given the LUC specifically found in an earlierhearing on the original reclassification from agricultural to urban,that the land was wholly unsuited for agricultural use (it is moreor less barren old lava flows) the case will likely call into questionthe state classification system as well.

D. The Endangered State of Comprehensive Plans and Planning

Hawai'i is, or was, a land planning state. There is a statutorystate plan, functional plans, county comprehensive general anddevelopment plans, and neighborhood plans, all calling for certainuses of land, and all, theoretically, with the force of law. Indeed,the Hawai'i Supreme Court so held in two 1989 decisions. 29 Not sotoday.

First, the state legislature confounded its own agency, theHawai'i Community Development Authority ("HCDA"), byreversing the approval of a carefully designed land developmentproject replete with a native Hawai'ian cultural performancevenue and massive privately-funded environmental clean-upproject of the site, all in accordance with a carefully drafted planand after months of hearings on both plan and project. It thenstripped the same HCDA of its authority to undertake or approvemost developments in that part of its jurisdiction, Kakaako,located near Ala Moana Boulevard. This area was also set out inthe aforesaid plan. Second, our State Water Commission andSupreme Court unaccountably dispensed with the mandatorylanguage in both a state water plan and applicable county generaland development plans to radically alter the assignment of waterrights from the Windward side of O'ahu to the Leeward side. In soignoring the plans, the court favored native Hawai'ian and waterconservation uses over economic uses, an inversion of theapplicable statutory hierarchy, as set out in the State WaterCode. 30

Most recently, a coalition of groups has attacked a long-planned, multi-phase residential project in the Ewa District eventhough the city and county plans for such a project have been inplace for some time. So far, the State Land Use Commission hasrejected the landowner's petition for the necessary boundary

129. Kaiser Haw. Kai Dev. Co., 777 P.2d at 248; Lum Yip Kee, Ltd., 767 P.2dat 820.130. Callies & Chipchase, supra note 117, at 93-94.

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amendments from agriculture to urban use classification, on theplausible ground that the application fails to adequately addresswith precision the timing of the development phases. While theproject is proposed on useful, and presently used for, agriculturalland, five former Honolulu planning directors have publiclywritten in a daily newspaper to point out the apparent conflictbetween housing and agriculture, and how that conflict wasresolved in official plans and planning.

E. The Issue of Native Hawai'ian Traditional andCustomary Rights

Claims of Native Hawai'ians to certain lands ceded by thegovernment that succeeded Queen Lili'uokalani to the UnitedStates upon annexation of Hawai'i as a territory of the UnitedStates at the end of the nineteenth century have roiled the statefor at least the past two decades. The nub of the issue is whetherthe United States had sufficient title to such lands to return themlegally to the State of Hawai'i shortly after statehood, and if so,whether the state was the proper returnee. Many NativeHawai'ians maintain that the Queen's government was illegallyoverthrown, the transfer of ceded lands to the United States wasalso illegal, and, therefore, the transfer back to the state is legallyineffective as well. The State of Hawai'i takes issue with at leastthe last two assertions and maintains that, in any event, the votefor statehood cured past legal problems, if any. The state has beennegotiating, largely through the state entity, the Office ofHawai'ian Affairs ("OHA"), on the matter of title to, and incomefrom, ceded lands for the past ten years. OHA rejected mostsettlement offers and appeared determined to maintain an all-or-nothing position. The matter came to something of a headfollowing a decision by the State Supreme Court. The court'sruling was largely, if not exclusively, based upon the ApologyResolution passed by Congress during the Clinton administration,forbidding the state to deal in ceded lands until Native Hawai'ianclaims are resolved, which could be years or decades. Given thatthe Apology Resolution is supposed by many to have no legal effect(indeed, at least one member of our senatorial delegation has sostated on the floor of the Senate), and the resolution also so states,it is hardly surprising that the state and many of its citizensstrongly disagreed with both the decision and its basis, resultingin a successful petition for a hearing before the U.S. SupremeCourt. Early in 2009, the U.S. Supreme Court ruled, in a relativelybrief but surprisingly unanimous opinion, that the ApologyResolution is just that; an apology, without so much as a scintillaof legal effect on the rights of Native Hawai'ians. Acknowledgingthat there may well be moral obligations resulting from the

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manner in which the territorial government was establishedfollowing the precipitous ending of the Hawai'ian monarchy, theCourt disposed of any notion that the resolution conferred anyrights against the federal or the state government. The Court alsostrongly hinted that the conferring of statehood, after a popularvote overwhelmingly favoring it, might well dispose of manyclaims as a matter of law. While there is some sentiment forfinding independent state grounds to prevent the sale of cededlands until the resolution of Native Hawai'ian claims, and whilethere are presently bills in the state legislature that may, withcertain exceptions, so provide, these are by no means free fromlegal issues; legal challenges are a virtual certainty, likely onFourteenth Amendment due process and equal protection grounds.There is also the small matter of the state/federal admissionlegislation, which places the ceded lands in trust for five purposes:education, agriculture, public improvements, public use, andNative Hawai'ians. In an unpublished memorandum (andpresumably unanimous) opinion fifteen years ago, the StateSupreme Court handily disposed of the notion that any of the fivepurposes takes precedence over all of the other four, andspecifically held that the state could dispose of ceded lands so longas the proceeds were traceable and accounted for among the saidfive purposes or beneficiaries. It is difficult to see what, on thelegal landscape, has changed, except for the Apology Resolution,now legally a very dead letter.

F. Burials

A study of historical and cultural land use and regulation inHawai'i cannot be complete without a review of those governingNative Hawai'ian iwi (bones) and burials that are foundthroughout the Islands. Indeed, between 1991 and 2000, nearlythree thousand sets of Native Hawai'ian remains have beendiscovered and reinterred.131 Any land development must stopwhen such sites are discovered. 132 Failure to comply with therelevant statutory provisions may result in civil, administrative,and criminal penalties.133 Furthermore, if such finds occur onfederal or tribal lands, the 1990 federal Native American GravesProtection and Repatriation Act ("NAGPRA") also applies. 134

According to Native Hawai'ian tradition, the bones of familymembers possess "mana," or spiritual power. 135 Unlike human

131. LISA WOODS MUNGER, HAWAII ENVIRONMENTAL LAW HANDBOOK,HONOLULU: GoV'T INSTS. 400 (3d ed. 2000).132. HAW. REV. STAT. § 6E-43.6(g).133. Id. §§ 6E-11, -73.134. 25 U.S.C. § 3001 (2008); 43 C.F.R. §§ 10.3-10.7 (2008).135. MELODY KAPILIALOHA MACKENZIE, NATIVE HAWAIIAN HANDBOOK 246-

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flesh, which decays, the bones of the dead allegedly contain thespirit of the deceased and transfer their power to their livingHawai'ian descendants."136 This belief is reflected in Hawai'ianproverbs:

'A'ohe e nalo ka iwi o ke ali'i 'no, o ko ke ali'i maika'i ke nalo.

The bones of an evil chief will not be concealed, but the bones of agood chief will.

When an evil chief died, the people did not take the trouble toconceal his bones. 137

While Native Hawai'ians once buried their dead ingraveyards, "wicked, traitorous, and desecrating chiefs" regularlyexhumed fresh corpses to use the flesh as food and shark bait andto fashion the bones into arrows and fishhooks.1sa Thereafter,Hawai'ians concealed their dead without identifying the sites.

Sand was the preferred location for burials because it betterpreserved remains than higher, wetter elevations.'39 Therefore,coastal areas with subsurface beach sand are likely to containiwi. 140 "[T]he confidentiality of description and locationinformation, especially for burial and other cultural sites, is ahighly sensitive issue [in] the Hawaiian community. The finalresting place of the ancestors of Native Hawaiians has alwaysbeen sacred and consequently, hidden to protect its sanctity."141Hence, burial secrecy lies at the heart of the state's burialstatutes. The watershed event that resulted in legislativelanguage to protect ancestral bones occurred in 1988, during theconstruction of the Ritz-Carlton at Honok5hau in Kapalua, Maui.The unearthing of approximately one thousand sets of remainscaused an uproar in the Native Hawai'ian community. Activistsimmediately protested the development and, after a $6 millionsettlement that included the relocation of the hotel to anotherparcel, the state legislature amended Chapter 6E of the Hawai'iRevised Statutes to include burial sites as part of its historical and

49 (Univ. of Hawai'i Press 1991).136. Id.137. MARY KAWENA PUKUI, 'OLELO NO'EAu: HAWAIIAN PROVERBS &

POETICAL SAYINGS (Bishop Museum Press 1983).138. See SAMUEL MANAIAKALANI KAMAKAU, TALES AND TRADITIONS OF THE

PEOPLE OF OLD (Bishop Museum Press 1991).139. See Sean Hao, Ancient Burials Likely in Transit Path, HONOLULU

ADVERTISER, June 22, 2008, at Al3, http://the.honoluluadvertiser.com/article/2008/In/hawaii806220357.html (quoting Thomas Dye, president of theSociety for Hawai'ian Archaeology).140. Id.141. Comm. on Water, Land, and Haw. Affairs, Standing Comm. Rep. 2868,

20th Leg., Reg. Sess., at 1 (2000) (re: H.B. 2762).

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cultural preservation provisions.142

Central to the enforcement of burial site regulation is theDLNR's State Historic Preservation Division ("SHPD"). One maynot so much as photograph remains without SHPD's approval.143

Indeed, SHPD is involved even if the private owner or developer isnot, at least directly. "Before any agency or officer of the [sitate orits political subdivisions approves any project involving a permit,license, certificate, land use change, subdivision, or otherentitlement for use, which may affect. .. a burial site, the agencyor office shall advise the department and prior to any approvalallow the department an opportunity for review and comment onthe effect of the proposed project."144

SHPD responds primarily to "inadvertently discovered" burialremains, defined as "the unanticipated finding of human skeletalremains and any burial goods resulting from unintentionaldisturbance, erosion, or other ground disturbing activity."145 Upondiscovery of a potentially historic burial site, SHPD requires thatit, the medical examiner, and the appropriate police departmentbe notified as soon as possible.146 A qualified archaeologist and amedical examiner must examine the remains to determinewhether the remains are over fifty years old.147 Once SHPD iscontacted, administrative procedures require a response time oftwenty-four hours on O'ahu, forty-eight hours on other islands,and an additional twenty-four hours if multiple sets of remains arereported to determine if the burial is historic.148 If the bones are ofanimal origin, then no statutory obligations are incurred.However, if the remains are over fifty years old and of NativeHawai'ian ancestry, then SHPD must begin gathering informationabout the history of the burial and determine whether the remainswill be preserved in place or relocated. 49 If the remains werediscovered with no relation to a planned development project,SHPD must prepare a mitigation plan requiring "appropriatetreatment. ..--of burial sites or human skeletal remains.150

However, if the discovery of remains was related to a planneddevelopment project, the landowner must prepare the mitigationplan with the concurrence of SHPD.1'1 The process often raises

142. HAw. REV. STAT. §§ 6E-3(3), (10), (11).143. HAW. CODE. R. § 13-300-32.144. HAw. REV. STAT. § 6E-42(a) (emphasis added).145. HAW. CODE. R. § 13-300-2.146. HAw. REV. STAT. § 6E-43.6(b).147. Id. § 6E-43.6(c). If the remains are not over fifty years old, the medical

examiner must investigate, and SHPD's involvement at the burial site ends.148. Id.149. Id. § 6E-43.6(c)(2).150. Id. §6E-43.6(e)(3).151. Id. §6E-43.6(e)(1).

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concerns in the Hawai'ian community because "developers mayconduct cursory archaeological inventory surveys, claim thatburials are 'inadvertently discovered,' and then attempt to forceSHPD to agree to removal/relocation."152 When it comes to landdevelopment in Hawai'i, inadvertent discoveries of NativeHawai'ian burial sites usually lead to controversy and consequentdelays in a project.153

The determination to preserve a burial site in place orrelocate remains may be based upon the advice of an Island BurialCouncil ("IBC"), which DLNR establishes to advise both thedepartment and SHPD regarding burial matters.154 IBCs exist forthe following five districts: Hawai'i, O'ahu, Kaua'ilNi'ihau,Moloka'i, and MauilLana'i.155 Comprised of between nine andfifteen members appointed by the governor, each council ischarged with making an inventory of burial sites in Hawai'i.156

The councils retain jurisdiction over all requests to preserve orrelocate "previously identified" Native Hawai'ian burial sites,while SHPD has jurisdiction over those burial sites that aredetermined to hold remains of non-Native Hawai'ian origin.157

"Previously identified" burial sites are those "containing humanskeletal remains and any burial goods identified duringarchaeological inventory survey and data recovery of possibleburial sites, or known through oral or written testimony."158 IBCsoften hold regular public meetings where they collect informationand testimony from Hawai'ians in order to "previously identify"burial sites. 59 The archaeological inventory survey identifies anddocuments the historic sites in the project area, includingsubsurface excavations, to determine the location of burial sites.160

Due to the inherent nature and sensitivity of the burial sites, IBCsoften keep the locations confidential and unrecorded in the publicrecords of DLNR's public records. 161

If Native Hawai'ian remains are discovered in an area whereburials have been previously identified, the remains may not movethem without SHPD's approval.162 SHPD refers the matter to the

152. Lisa A. Bail et al., Emerging Environmental and Land Use Issues, 9-June HAW. B.J. 4 (2005).153. Id.154. HAW. REV. STAT. § 6E-43.5(d).155. Id. § 6E-43.5(a).156. Id. §§ 6E-43.5(b), (f).157. See HAW. CODE. R. §§ 13-300-33, 13-300-34 (describing the duties and

responsibilities of the councils and the SHPD).158. Id. § 13-300-2.159. Id. § 13-300-31(a).160. Id. §§ 13-276-3 to 5.161. HAW. REV. STAT. § 6E-43.5(e).162. See id. § 6E-43(a) (excluding "known, maintained, [and] actively used

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appropriate IBC, which then determines whether the remains willremain undisturbed or if they will be reinterred at a differentlocation. 163 The councils are more likely to recommendpreservation for "areas with a concentration of skeletal remains, orprehistoric or historic burials associated with importantindividuals and events, or areas that are within a context ofhistoric properties, or have known lineal descendants."16" Therelevant IBC has forty-five days, commencing with the date thatSHPD makes a referral to it, to render a determination regardingthe disposition of the remains.165 The IBC must also make a good-faith effort to give notice of any proposed burial treatment plan tothe possible lineal or cultural descendants of the remains.166

If the IBC determines that the burial site should be preservedin place, the applicant must then develop a preservation planproviding for both short-term and long-term preservation of aburial site.167 When the IBC determines to relocate the burial site,the landowner must complete an archaeological data recovery planoutlining the reasons for relocation, the methods for disinterment,and the location and manner of reinterment.16 The SHPD thenhas ninety days to approve of the archaeological data recoveryplan.169 Moreover, SHPD must first consult with the applicant,any known lineal descendants, the IBC, and any appropriateHawai'ian organizations before approving the plans.170 After theSHPD approves the final plans to preserve or reinter, it mustrecord the IBC's determination with the Bureau of Conveyances toensure that the burial sites are protected in perpetuity.171

There are several locations in Hawai'i in which the state'sburial laws have delayed development projects, including the siteof a Wal-Mart and a Whole Foods Market on O'ahu, a luxury golf-residential development on the Big Island of Hawai'i, and privateresidences on Maui. Most recently, sixty-nine Hawai'ian remainsdiscovered during earthmoving for the construction of a $17.5million multipurpose center on the grounds of Honolulu's famousand largely Native Hawai'ian-attended Kawaiaha'o Church, hasresulted in a temporary halt in construction due to "one of the

cemeter[ies] from the category of burial sites which need the SHPD's approvalbefore relocating any remains that appear to be over fifty years old).163. Id. § 6E-43(b).164. Id.165. Id.166. HAW. CODE. R. § 13-300-33(b)(1).167. Id. § 13-300-38(e).168. Id. § 13300-38(f).169. Id.170. Id. §§ 13-300-38(e)-(i).171. Id. § 13-300-38(g).

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largest graveyard intrusions on O'ahu."17 2 An archaeologist hiredby an interested third party found that the excavation is alsoencroaching on the burial plot of one of Hawai'i's prominentfigures, Queen Kapi'olani.173 The project halted while the churchsupplied the state with "documentation on past burials,conduct[ed] hand excavations of newly discovered remains anddevelop[ed] a detailed reburial plan for bodies that [have been]unearthed." 174 The church was also required to use ground-penetrating radar to examine the property for additional burialsthat might not yet have been disturbed. 175

Earlier, a huge controversy erupted on Kaua'i over remainson a single residential lot. On December 11, 2007, the Kaua'iCounty Planning Commission approved the construction of asingle-family home on a lot in Ha'ena, conditioned on anarchaeological survey of the land and a subsequent approval bythe SHPD.176 The archaeological survey uncovered thirty sets ofNative Hawai'ian remains on the half-acre lot. SHPD thenrequired the landowner to draw up a burial treatment plan forprotecting the remains.177 The plan proposed preservation in placeof twenty-four sets of remains that would not be impacted by theconstruction and on-site relocation of the six others that would beunder the footprint of the proposed house. 78

Upon receiving the burial treatment plan, however, theKaua'ilNi'ihau IBC recommended that all thirty sets of remains,together with those that may be found on the property in thefuture, should be preserved in place.179 The landowner thenrevised the burial treatment plan to preserve all thirty remains inplace, by capping the graves with cement blocks and addingvertical buffers to protect the human remains.180 After consultingwith Native Hawai'ian organizations and the Kaua'ilNi'ihau IBC,SHPD approved the plan,181 though it apparently approved thevertical buffers and concrete cappings as a means of preservation

172. Rick Daysog, Kawaiaha'o Church Center's Fundraising CostsQuestioned, HONOLULU ADVERTISER, May 29, 2009, at A1-A2.173. Rick Daysog, OHA Asks for Study of Burials, HONOLULU ADVERTISER,

June 9, 2009, at Bl.174. Rick Daysog, Church Project in Need of Disinterment Permit,

HONOLULU ADVERTISER, June 13, 2009, at Bl.175. Id.176. Order Granting in Part and Denying in Part Defendant's Motion for

Preliminary Injunction at 2, Brescia v. Edens-Huff, No. 08-1-0107 (2008).177. Id. at 2-3.178. Id. at 3.179. Id.180. Id.181. Id.

352 [45:317


of the remains without the approval of the Kaua'ilNi'ihau IBC.182As the burial statute presently provides, although the IBCs havethe authority to determine the preservation or relocation ofpreviously identified Native Hawai'ian burials, the councils mayonly make recommendations regarding the appropriatemanagement treatment and protection of the Native Hawai'ianburial sites after making their initial determination. 183

For burials "excavated intentionally or discoveredinadvertently" on federal lands in Hawai'i and Hawai'ian HomeLands, NAGPRA applies. NAGPRA mainly deals with threeissues: (1) the custodial priority of the cultural items excavated ordiscovered to the organizations or descendants who lay claim tothem; (2) the process by which intentional removal of culturalitems are allowed; and (3) "inadvertent discoveries" of nativeremains and objects.184 Regulations promulgated by theDepartment of the Interior then govern the process by which"human remains, funerary objects, sacred objects, or objects ofcultural patrimony are excavated or removed." 185 For the lattertwo, and for any event in which a Native Hawai'ian organization islikely a consulting party, the rules require that "the responsibleFederal agency official must" notify said organizations in writingin addition to any other communication that may have occurred. 186

In general, the federal mandates are similar to those of thestate, requiring the immediate cessation of activity in the case ofinadvertent discoveries and the consent of Native Hawai'ianorganizations in the case of intentional excavations. 87 There is atleast one difference, however. Whereas an IBC can require thepreservation of bones as-is and where-is on state and privatelands, site activity may resume within thirty days on federal lands"after certification by the notified Federal agency of receipt of thewritten confirmation of notification of inadvertent discovery if theresumption of the activity is otherwise lawful."188 The presumptionis that state burial regulations do not apply to federal lands.Instances of removals or excavations are not an issue becausethese are explicitly covered in the NAGPRA regulations.189 Federalagencies are encouraged to come to an agreement with local

182. Indigenous Mapping Network, Kanaka Maoli Scholars AgainstDesecration - Second Statement on Naue, Mar. 24, 2009,http://indigenousmapping.net/newitem.html?start=25 (scroll down to "KanakaMaoli Scholars Against Desecration").183. HAW. REV. STAT. § 6E-43.5(f).184. 25 U.S.C. §§ 3002(a)-(d).185. 43 C.F.R. § 10.3(c)(4)(i).186. Id. §§ 10.3(c)(1), 10.4(d)(1)(iii), 10.5(b)(1).187. Id. §§ 10.4(c), 10.3(b)(2).188. Id. § 10.4(d)(2).189. Id.

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organizations with respect to human remains and other sacredobjects.190

G. Sacred Sites

Sacred sites, or wahi pana, are also important to the NativeHawai'ian community. According to Native Hawai'ian belief,sacred places, like human remains, possess "mana," or spiritualpower in connection with the gods or important chiefs that mayhave resided there, the events or natural phenomena that occurredthere, or the usefulness or aesthetic value of the location.191"[Hawai'ian sacred places] are more than remnants of a distantpast; they are enduring reminders of Hawaiian identity, a richheritage left by kapuna."192 Native Hawai'ians are spirituallyconnected to these sacred places, linking them to their past,present, and future.193

Native Hawai'ians believe that such sites can be irreparablyharmed physically as well as spiritually; the mere visitation ofcertain locations or touching of certain objects could cause thesacred spirits to be destroyed or to leave the site.194 Thedestruction or departure of spirits from wahi pana is said to bedetrimental to the Native Hawai'ian culture. There are manyexamples in Hawai'i where the Native Hawai'ian community hastried to protect their sacred sites. In 2007, challenges byenvironmental and Hawai'ian groups temporarily halted plans forthe Outriggers Project, a $50 million addition to the W. M. KeckObservatory on Mauna Kea's summit.195 Mauna Kea is allegedlysacred to the Hawai'ian people not only as a place of worship andprayer, but also because Hawai'ian legend suggests it was herethat the first ancestors of the Hawai'ian people, Papa and Wakea,met.196

A court reversed a decision by DLNR that granted aconservation district permit allowing the University of Hawai'iInstitute for Astronomy to proceed with the Outriggers Project. 197

It ordered the completion of a comprehensive management planbefore any project could proceed, stating "the resource that needs

190. Id. § 105(f).191. VAN JAMES, ANCIENT SITES OF O'AHUix xi (Bishop Museum Press 1991).192. JAN BECKET & JOSEPH SINGER, PANA O'AHU: SACRED STONES, SACRED

LANDS xxvi, xxvii (Univ. of Hawai'i Press 1999).193. JAMES, supra note 191, at ix.194. BECKET & SINGER, supra note 192, at xxvii.195. Kevin Dayton, Big Push to Erect Telescope in Isles, HONOLULU

ADVERTISER, Aug. 10, 2008, at Al.196. Id.197. Mauna Kea Anaina Hou v. DLNR, Civ. No. 04-1-397 (D. Haw. Aug. 3,

2006).

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to be conserved, protected and preserved is the summit area ofMauna Kea, not just the area of the Project."19 8

While not perfect, historic preservation is alive and well inHawai'i. The state's legislative protection has been strengthenedover the years, and there are some linkages to other laws that arevariously triggered when a historic site is listed and that provide ameasure of protection to certain sites. But the state could do more,especially given the constitutional mandate that other states withstronger preservation laws lack. Indeed, Hawai'i is in the minorityof states that fail to provide rehabilitation tax credits for historicbuildings. 9 9 It is the counties that play a major role in enactingordinances with the most promise for preserving Hawai'i's historicheritage. Witness two of the four counties' "certified localgovernment" status and the Big Island's Hawai'i Heritage Corridorprogram. Given the strong language of the Penn Central decisionfrom our nation's highest court upholding historic preservationrestrictions prohibiting demolition altogether, it is clear that therewould be no legal barriers to more forceful implementation of ourstate constitutional mandate that "private property shall besubject to reasonable regulation" in order to "conserve and developobjects and places of historic or cultural interest."200

198. Id. at 7.199. See Harry K. Schwartz, State Tax Credits for Historic Preservation,

NAT'L TRUST FOR HISTORIC PRES., http://www.preservationnation.org/issues/rehabilitation-tax-credits/additional-resources/state tax credits-chart-5-20-2011-2.pdf (last updated May 2011) (showing that thirty states have taxcredits for historic preservations and Hawai'i is not among them).200. HAw. CONST. art. IX, § 7 (emphasis added).

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